State ex rel. Fox v. Hicks, 60-82-02507
| Decision Date | 08 August 1984 |
| Docket Number | No. 60-82-02507,60-82-02507 |
| Parties | STATE of Oregon, ex rel. Tammie FOX, Respondent, v. Jimmy K. HICKS, Appellant. ; CA A28881. |
| Court | Oregon Court of Appeals |
Diane DePaolis, Lane County Legal Aid Service, Eugene, argued the cause and filed the brief for appellant.
Michael D. Reynolds, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Jan Peter Londahl, Asst. Atty. Gen., Salem.
Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.
This is an action brought by the state to determine the paternity of the minor child born to Tammie Fox on October 11, 1979. The court ruled that defendant is the father and ordered him to pay child support. We reverse.
Pursuant to the prerequisites for the receipt of public assistance, Tammie Fox named defendant as the father of her child. Thereafter the state initiated this paternity action. Defendant appeared without counsel, denied paternity and agreed to have the case set for trial on January 18, 1983. Defendant was indigent and was represented by a Legal Aid attorney. In deposition testimony, defendant expressed his willingness to submit to blood group tests but stated that he was unable to pay for the tests, because he was indigent and unemployed.
In December, 1982, defendant, his attorney and the state's attorney signed a stipulation in conjunction with a request to postpone the trial. The stipulation and order were signed by the court on December 20, 1982. The stipulation states in part:
"Defendant, Jimmy K. Hicks hereby agrees to submit to blood testing of himself, the relatrix, and the child on or before March 15, [1983] and recognizes that he has the obligation for paying for such tests."
Defendant asserted that the delay of trial was necessary so that he could accumulate the funds to pay for the tests. In January, 1983, he deposited $60 with his counsel toward payment of the costs of the tests.
On March 16, 1983, the state moved for determination of paternity pursuant to ORS 109.252:
In an accompanying affidavit, the state said that the postponment of trial was on the express condition that defendant enter into a stipulation to pay for the blood tests and that no such tests had been performed. The state argued that that was equivalent to a refusal under ORS 109.252.
Defendant submitted his affidavit and memorandum in opposition to the state's motion. In the affidavit, he outlined the dire state of his finances, his attempt to acquire the necessary funds, approximately $450, to pay for the tests and affirmed his willingness to submit to the tests. He also moved for appointment of blood test experts and requested that the state be ordered to pay for the tests, because he was indigent. He offered the $60 accumulated in his counsel's trust account as part payment and argued the state could recover the remainder of the expense as part of costs following trial.
The court heard arguments on the motions, but no evidence other than the affidavits was received. The court granted the state's motion for judgment of paternity under ORS 109.252 and ruled that defendant's motion for blood tests at state expense was moot. The court also ordered defendant to pay child support.
Defendant contends that the judgment of paternity is erroneous for three reasons. He argues, first, that the uncontroverted evidence of his indigency and his expressed willingness to submit to the tests does not support the finding of a refusal required for judgment under ORS 109.252. Second, he contends that the stipulation was not an order of the court that he submit to the blood tests as required to trigger the application of ORS 109.252. Third, he contends, citing Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), that he was denied due process of law by being prevented from having critical and reliable blood test evidence available because he is indigent.
The state argues that, because defendant entered into a stipulation to take and pay for the blood tests and failed to do what he had agreed, judgment under ORS 109.252 was appropriate. The state contends that defendant should have attempted to withdraw from the agreement rather than simply fail to take the tests. Any defect in the order, the state contends, was waived by defendant's stipulation, and he cannot now claim that he was not required to take the tests at his own expense. In response to defendant's due process argument, the state contends that Little is distiguishable, because it involved a different state statutory scheme and materially different facts.
We discuss defendant's contentions in the order presented. Defendant first contends he did not refuse the tests and that the summary adjudication of paternity under ORS 109.252 was inappropriate. That statute allows the court a measure of discretion in determining paternity against the party refusing to submit to a blood test, i.e., "if the rights of others and the interests of justice so require." The exercise of discretion is dependent on a finding that the party has refused the test. The authority of the court to adjudicate paternity summarily under ORS 109.252 is in the nature of a sanction to enforce compliance with a blood test requirement. The determination is made without taking evidence on the factual questions as to who is the father of the child. In that context, we conclude that refusal is not simply a failure to take the test but an unwillingness to comply based on an intention to disobey the court's requirement respecting the blood test. Although the failure to take the test may be based on unjustified reasons and therefore be tantamount to a refusal, the court must examine the reasons to determine if there is in fact a refusal. It cannot simply equate the failure to take the tests with a refusal under the statute without an assessment of the underlying reasons, which should be done at the time the issue of refusal is raised under ORS 109.252.
The court apparently concluded that, because defendant had agreed to take the tests and pay for them, any failure to comply with that agreement was a refusal. There is no indication in the record that the court determined that defendant's reasons for not taking the test were unjustified or that his request for the tests at state expense was untimely.
Defendant's affidavit regarding his willingness to submit to the tests and his financial inability to pay for them in advance was uncontroverted. Although he had agreed to take and pay for the tests, that expectation did not materialize and, at the time the state moved for summary determination of paternity, defendant was apparently unable to abide by his agreement. We conclude that, under the facts presented in the record, the trial court had no basis for concluding--as it was required to do--that defendant's failure to take the tests was not based on unreasonable considerations and was therefore not a refusal pursuant to ORS 109.252.
We rest our conclusion in part on considerations of due process of law under the federal constitution. Defendant raised that issue in conjunction with his request for blood tests at public expense. However, due process considerations are implicated in determining if a putative father who is indigent can be summarily determined to be the father of the child under ORS 109.252 without a meaningful opportunity to present blood test evidence.
Little v. Streater, supra, presents a situation similar to this case. The mother of a child born out of wedlock was receiving public assistance. Under Connecticut law, she was required to name the father of the child, and the state had authority to proceed against the person so designated for a determination of paternity and to seek child support. Little was named as the father of the child. He was incarcerated in the penitentiary and moved for blood tests at public expense because of indigency. The motion was denied, and at the trial he was determined to be the father of the child. No blood test evidence was presented. The Supreme Court identified the issue:
"This appeal presents the question whether a Connecticut statute, which provides that in paternity actions the cost of blood grouping tests is to be borne by the party requesting them, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment when applied to deny such tests to indigent defendants." 452 U.S. at 3, 101 S.Ct. at 2204.
The Court analyzed the due process question under the principles of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976):
" * * * [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement...
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Shaw v. Seward, 84-CA-1107-DG
...326 Pa.Super. 464, 474 A.2d 333 (1984); see also Ex Parte Calloway, 456 So.2d 306, 307 (Ala.Civ.App.1983); State ex rel. Fox v. Hicks, 69 Or.App. 348, 686 P.2d 431 (1984). Further we would suggest, as did the United States Supreme Court, that the expenses in providing the tests be advanced ......
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